Presented at the 2015 Meeting of the Southern Management Association.

1. Can I Be Fired for Facebook? Looking at
the Legality of Social Media Terminations
Across Job Types
Kimberly W. O’Connor, J.D. and Gordon B. Schmidt, PhD.
Indiana University-Purdue University Fort Wayne
oconnok@ipfw.edu ; schmidtg@ipfw.edu
**This presentation is available on SlideShare.

2. Legal Protections For Workers
• Many legal cases have resulted from employees’ personal social media use.
• 17% of employers report disciplinary issues and 8% report firing employees.
• Questions:
1) What legal protections exist for employees who use social media?
2) Are there common guidelines for what organizations deem to be appropriate and
inappropriate online behavior?
3) Are there differences in what is considered acceptable social media behavior across job
types?

3. At – Will/Private Sector Employees - An employee whose employment is for an
indefinite duration and can be hired or fired at the employer’s discretion.
Union Employees - An organization intended to represent the collective interests
of workers in negotiations with employers over wages, hours and working conditions.
Public Sector Employees – A person who is employed in the public sector and whose
work is controlled by governmental bodies whether at the federal, state, or local level.

4. NLRA Applies To At-Will and Union
Employees’ Use of Social Media
• National Labor Relations Act – “NLRA” Section 7 of the NLRA gives employee
the right to engage in “concerted activities” for their “mutual aid and protection.”
• “Protected Concerted Activity” includes two or more employees acting
together to address a collective employee concern about work terms or
conditions.
• Employers cannot take action to restrain such activity.
• Online social media is included

5. Design Technology Group, LLC, 359 NLRB
No. 96 (April 19, 2013).
Clothing Store
Employees who
complained on
Facebook about their
supervisor, including
the supervisor’s
treatment of employees
and the supervisor’s
lack of concern for
employee safety.
The employees got their
jobs back after the NLRB
determined
that their Facebook
discussion involved
“terms and conditions
of their employment,” as
protected by the NLRA.

6. Triple Play Sports Bar and Grille v. Nat’l Labor
Rel. Board (2014).
• “Maybe someone should do the owners of
Triple Play a favor and buy it from them.
They can’t even do the tax paperwork
correctly!!! Now I OWE money…Wtf!!!”
• “I owe too. [The boss is] Such an asshole.”
• The employees got their jobs back, were
awarded back pay and money for their tax
liabilities.

7. Union Case – City of Detroit v. Detroit Police
Officers Association
• Officer Bennett created and operated an Internet website, www.firejerryo.com,
that was critical of police chief Jerry Oliver.
• The website provided a forum for police officers to express concerns regarding
the police department and included “edgy” criticism of departmental officials.
Many officers posted on this website.
• Bennett was fired. The court held that Officer Bennett’s rights were interfered
with and that the discipline violated the law.
• Bennett was reinstated to his original job.

8. The NLRA does not protect against “personal
gripes.”

9. Free Speech Rights Apply to Public Sector
Employees
The First Amendment states that Congress shall make no law….abridging the freedom of speech.
For Public Employees
First Amendment rights
exist for matters of
“Public Concern”
only and only if the
speech is spoken as a
citizen and not as a
public employee.

10. Public Sector Employees – Non-Union Police
Officers
• "Dear Mayor, can we please get a leader
that understands that a department
sends officers (to) the funeral of an
officer killed in the line of duty?"
• 5th Circuit (2015) – Held this post was
not a matter of public concern since
she was speaking as an officer, not as a
citizen.
Graziosi v. City of Greenville, (5TH Cir., 2015).

11. Public Sector Employees – Non-Union K-12
Teachers
Rubino v. City of New York,
(Sup. Ct. NY 2012)
Tenured fifth-grade New York
school teacher, Christine
Rubino posted the following
statement about her students, “I
HATE THEIR GUTS! They
are the devil’s spawn!”
She was terminated for
misconduct, neglect of duty,
and conduct unbecoming of a
teacher
Rubino argued that her post was
protected by First Amendment Freedom
of Speech and New York Education Law
3020. The court held that Rubino’s
statements did not involve a “public
concern” and could not be afforded First
Amendment protection.
But, Rubino got her job back because
of the state statute, which required an
examination of her entire teaching
record. The court held that her post was
an isolated incident of intemperance.

12. Nuances for certain job types: State Statutes
and Collective Bargaining Agreements
• Common in certain professions are additional state law protections. Ex. Teacher
Tenure Laws.
• Collective Bargaining Agreements – It is common for a just cause provision that
permits challenges to disciplinary action through a grievance procedure such as
arbitration.
• Some industries may promote employees’ social media use as good for business.
Ex. IBM encourages staff to express themselves, let their voice
shine and demonstrate their creativity and skills on social media.

13. Common Guidelines and Criteria
Across Job Types
• Employer social media policies may not be overbroad so as to restrict
employees’ First Amendment or NLRA rights.
• Some states protect against employer requests for social media passwords, no
matter what the job type.
• Legal protection and/or consequences for the employee, begin at the moment
the employee receives the job offer.

14. What do we still need to know?
• If the adoption of additional privacy protections by social media websites
will effect employers’ ability to observe employees’ social media use.
• If public opposition to employer discipline involving social media will result
in more state law protection for employees over time.
• If international laws involving social media and employment will have an
impact on US laws (Ex – Right to be Forgotten).